Guantánamo's Layers of Lawyers

In the criminal justice system, we're familiar with two separate yet equally important groups of lawyers. On one side, we have attorneys for the government, who investigate, charge, and prosecute crimes. On the other, we have the defense attorneys, who advise the accused, preserve their rights, and represent them before the court.

At the Guantánamo Bay military commissions, where I observed pre-trial hearings last week, things are not so simple.

Take the prosecution of Ramzi bin al Shibh, one of the five detainees being tried for his alleged role in the 9/11 attacks. At least four legal teams are now directly involved in Mr. Shibh's case. They include not just the prosecution and defense teams, but also two additional sets of lawyers, each charged with investigating highly fraught issues of fairness and procedure that have arisen in this unique military commission system. These additional legal teams are necessary to address yet another problem of the government's own creation.

First, we have a special litigation team from the Department of Justice, examining whether Mr. Shibh's defense was compromised by the FBI's secret infiltration of his legal team. As you'll remember, hearings were stalled in April, when lead counsel for Mr. Shibh revealed that his team had been under ongoing FBI investigation and that members of the defense were recruited as FBI informants. Last week, the proceedings were again derailed while the DOJ's special litigation team advised the commission judge – without explaining what the FBI was even investigating – that the investigations had ceased and could no longer impair the detainees' representation or their attorney-client relationships. (Some of the detainees' lawyers cried foul, arguing that past probes continue to wreak havoc on their defense.)

Second, we have an independent defense counsel appointed to help Mr. Shibh understand the DOJ team's report and decide for himself whether his defense has been compromised and if he needs new counsel. Frustratingly, the DOJ's special litigators refused to share any details about the probes, so the prosecution and defense teams, as well as the public, are left to speculate about the nature of the FBI investigations and the extent of their reach. Without information about the risks and potential conflicts of continued representation, Mr. Shibh's own lawyers cannot advise him on this issue. In the meantime, everyone must wait for independent defense counsel to get full disclosure from the DOJ special litigators in order to advise Mr. Shibh about whether he needs a new defense team.

So why all these layers of lawyers?

They're the direct result of external government agencies' secret tampering in this case. And extra lawyers – "shuffling in and out of the courtroom," as defense counsel Walter Ruiz describes it – are costly to the 9/11 prosecution itself. For example, the last three commission hearings were consumed by side-litigation to discover how much damage has been done by the FBI and other agencies operating in the shadows of military justice.

During last week's proceedings, there was much discussion from the prosecution team about the need to avoid delay. But the reality on the ground at Guantánamo is that an unfair, unbalanced playing field gives carte blanche to outside influences to derail the commission's proceedings, resulting in more litigation, parallel investigations, extra lawyers – and increased delays. That's on top of the additional legal challenges resulting from the government's rejection of federal courts' more equitable system of justice in favor of military commissions. In the end, of course, history judges trials not by how quickly they convict people, but how fairly they arrive at their result.

In this instance, again, delay becomes necessary to achieve some greater measure of fairness. Unfortunately, we're still very far away from that.

Learn more about Guantánamo Bay and other civil liberties issues: Sign up for breaking news alertsfollow us on Twitter, and like us on Facebook.

View comments (2)
Read the Terms of Use

Mrs. Abu Zubaidah

The whole system is screwed up. Even if I only am familiar with one detainee, my brother in law Zayn (Hani)... The only lawyers who will deal with the detainees are the ones who have further ambitions (book deals) than seeing their client have their day in court. And when they do have a day in court it is more like a bad circus of bad journalism, new courtroom guidelines and horrific lawyers who most people wouldn't want them to represent them on a parking ticket violation. Guantanamo is paradise in hell all things that come in or out of the place gets corrupted. Shame on our government, shame on the lawyers of the many who call GTMO Camps Home. Shame on all Fed agencies involved in info gathering. Shame on the torturers, Shame on all the non profit ORGS getting massive donations when all they do is have one rally a year that lasts like a hour then the rest of the year nothing. Shame on the UN for failing to do what it was created to do.

Family member o...

So... the person in my family who was burned out of existence so effectively they've never found a single remain to give him a confirmed death certificate (as opposed to a 'Death In Absentia' form, which is nothing at all) doesn't get to have ANY rights and I mean none at all.
And all because some goddam OTHER Americans were "in the Holy Lands."
Well he never went to the god almighty Holy Lands so why is he one of the people who died for it? That was one of the reasons Osama bitch Laden gave for why he was angry at us, and why I guess he had to do what he did; that and 10 other reasons he gave for it.
It honestly makes me sick and disgusted to hear about these people and their "violated rights" when every right Eric had was ripped away from him - even the right to freakin' continue breathing.

Stay Informed